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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

14 FLRA No. 62
NEW YORK STATE NURSES ASSOCIATION
Union
and
VETERANS ADMINISTRATION,
BROOKLYN MEDICAL CENTER
Agency
Case Nos. O-NG-549 and
O-NG-603
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petitions for review in these cases come before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and present issues
relating to the negotiability of two Union proposals and three
provisions of a negotiated agreement disapproved by the Agency pursuant
to section 7114(c) of the Statute. Upon careful consideration of the
entire record, including the parties' contentions, the Authority makes
the following determinations. /1/
The Union's petition for review in Case No. O-NG-549 concerns two
Union proposals alleged to be nonnegotiable in the course of
negotiations for a new collective bargaining agreement. The first
proposal, designated "3.08 Non-Nursing Functions," required management
to exert good faith efforts "to minimize the performance" of enumerated
"non-nursing functions." The second disputed proposal, "11.02 Parking
Facilities," obligated management to provide bargaining unit employees
with safe, accessible, free parking.
The parties continued their negotiations and subsequently reached
accord on a new collective bargaining agreement. Upon review pursuant
to section 7114(c)(1) of the Statute, the Agency head rejected three
provisions including a revised version of article 3.08 now entitled
"assignments" as being nonnegotiable. The Union's petition for review
in Case No. O-NG-603 concerns these three provisions. In responding to
the Union's petition for review, the Agency withdrew its allegations
concerning two of the three provisions designated as articles 14 and
18.01. Accordingly, the Authority concludes that the Union's appeal in
Case No. O-NG-603 as it pertains to articles 14 and 18.01 is moot. See,
e.g., Chicago O'Hare Chapter 10, Association of Civilian Technicians and
Illinois Air National Guard Technicians, O'Hare Air Reserve Forces
Facility, Illinois, 10 FLRA No. 49 (1982).
Also included in the final agreement between the parties is a revised
article 11.02 which does not require management to provide free parking.
This new provision was approved in the course of the Agency's section
7114(c)(1) review. The Union, nevertheless, contends that the prior
parking proposal, included in its appeal in Case No. O-NG-549, remains
in dispute and, thus, continues to seek a ruling from the Authority on
the negotiability of that proposal. The Union also continues to seek a
determination from the Authority on the prior article 3.08 as well as
the more recent one.
In the interest of expeditious processing of these two cases which
arose out of the same set of circumstances and which contain common
issues, the Authority grants the joint Union/Agency motion for
consolidation of the two appeals.
The Agency has moved to dismiss the Union's petition for review in
Case No. O-NG-549 on the basis that the two disputed proposals in that
case have been superseded by provisions in the negotiated agreement,
thereby rendering the appeal moot. The Union tacitly concedes that the
provisions in the agreement are substitutions for the proposals in Case
No. O-NG-549, but contends that the dispute in Case No. O-NG-549 is a
continuing one because the revised articles 3.08 concerning assignments
and 11.02 concerning parking were included in the agreement "not as a
compromise, but based on the parties' agreement that (the Union's)
proposed language would be substituted for the contractual language if
(the) Authority upheld (the Union's) petition in Case No. O-NG-549.
However, the Union proffers no documentary support for the existence of
such an understanding between the parties, nor does the negotiated
agreement provide for such a contingency. Moreover, the Agency does not
advert to such an understanding in its motion to dismiss Case No.
O-NG-549. The parties' current negotiated agreement does however,
provide in article 18.01 for a specific exclusive procedure for
initiating modification which limits negotiation on revisions to not
more than once each contract year and requires that notice of intent to
revise be given sixty days prior to the agreement's anniversary date.
Negotiation on proposed revisions, under terms of the agreement, may
only be undertaken upon assent of both parties.
The threshold issue presented by the Agency's motion to dismiss can
be resolved on the basis of the record before the Authority by resort to
the well settled principle that prior or contemporaneous oral agreements
between contracting parties cannot be used to alter the meaning of
conflicting provisions mutually agreed upon and reduced to writing. /2/
Here, the Union seeks to reopen negotiations on provisions which appear
in the negotiated agreement without recourse to the procedure provided
in the agreement for that purpose. Instead, the Union refers to an
alleged oral agreement between the parties as the basis for asserting
that its petition for review in Case No. O-NG-549 remains viable. In
the absence of any supporting documentation for the Union's assertion,
and in light of the negotiated agreement's specific procedure for
renegotiation which has not been followed herein, the Authority finds
that the provisions in the agreement superseded the proposals contained
in the petition for review in Case No. O-NG-549 and that the dispute in
Case No. O-NG-549 is therefore moot. See Federal Employees Metal Trades
Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard,
7 FLRA 701 (1982), and cases cited therein.
Consequently, the sole subsisting dispute appropriate for resolution
under section 7117 of the Statute concerns the negotiability of the
revised article 3.08, disapproved by the Agency head pursuant to section
7114(c) and included in Case No. O-NG-603, which provides as follows:
3.08 Assignments. It is understood that assignments should be
reasonably related to the employee's position and qualifications.
Except as required by special circumstances or, emergencies,
supervisors shall avoid assigning to employees additional or
incidental duties which are inappropriate to their positions and
qualifications.
This provision would prevent management from assigning "additional or
incidental duties" to bargaining unit employees except in "special
circumstances"-- a term not further defined-- or in emergency
situations. In this respect, Provision 3.08 is to the same effect as
the portion of Union Proposal 1, precluding the assigning of certain
duties to specified personnel except in enumerated circumstances, held
to violate the Agency's right under section 7106(a)(2)(B) of the Statute
"to assign work" in American Federation of Government Employees,
AFL-CIO, National Joint Council of Food Inspection Locals and Department
of Agriculture, Food Safety and Quality Service, Washington, D.C., 9
FLRA No. 74 (1982). Based on Food Safety and Quality Service and the
reasons and case cited therein, Provision 3.08 violates the Agency's
section 7106(a)(2)(B) right "to assign work" and is outside the duty to
bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petitions for review in Case
Nos. O-NG-549 and O-NG-603 be, and they hereby are, dismissed. Issued,
Washington, D.C., May 3, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency's motion that the Union's petition for review in Case
No. O-NG-549 be dismissed as being untimely filed cannot be sustained.
The record in this case indicates that the Union filed its appeal with
the Authority within the time limits prescribed by sections 2424.3 and
2429.21 of the Authority's Rules and Regulations.
/2/ See, e.g., Local 461, IUE v. Singer Co., 540 F.Supp. 442, 446-47
(D.N.J. 1982); Lewart v. Woodhull Care Center Assocs., 549 F.Supp. 879,
883 (S.D.N.Y. 1982); Donovan v. U.S. Postal Serv., 530 F.Supp. 872, 890
(D.D.C. 1981).